Dumartheray, and were evidence to show that Dumartheray entered and claimed as owner and therefore good against a mere prior possessor. (Livingston v. Peru Iron Co., 9 Wend.

511; 8 Cow. 589; 13 John. 120; 9 Id. 180; 2 Caines, [296] 183; 5 Serg. & R. 354; 2 *Mason, 536; Gregory v. Haynes, 13 Cal. 595; Hubbard v. Sullivan, 18 Id. 508.) III. The Court erred in refusing to allow the defendants to prove the payment of taxes as evidence of ownership, or of abandonment by Mondolet, also the value of the improvements. (Ford v. Holton, 5 Cal. 21; Welch v. Sullivan, 8 Id. 202, 511.)

IV. The Court erred in refusing to allow the tax deed by Patch, Tax Collector, to be read in evidence, on account of the insufficiency in the description of the premises recited in the deed. (1 Selden, N. Y. 236; Dana v. Fiedler, 2 Kern. 40; Sharp v. Spier, 4 Hill, 76; Talman v. White, 2 Coms. 66; 13 How. 18; Kelsey v. Abbott, 13 Cal. 609; Lackman v. Clark, 14 Id. 131; Patch v. Moore, 12 Id. 265.) The defendants had the right to show by parol the meaning of the figures "12x100" in the description in the tax deed. (Story on Cont. 677; 10 Texas, 546; 13 B. Monroe, Ky. 477; 16 Missouri, 210; 13 Ill. 708; 2 Kern. 40; 4 E. D. Smith, N. Y. 215.)

V. The Court erred in charging the jury that the question of abandonment was a question of intention in this case, and exclusively a question of fact, and that the Van Ness Ordinance had no operation in favor of the defendants to the action. (Davis v. Butler, 6 Cal. 510; 1 Watts, 46; 5 Id. 13, 173, 284, 359; 1 Serg. 120; Whitney v. Wright, 15 Wend. 171; 10 Cal. 331; Wolf v. Baldwin, 19 Id. 306.)

VI. The Court erred in refusing a new trial for the insufficiency of the evidence to justify the verdict.

H. S. Love, for Respondent.

I. It was clearly proper for the Court not only to allow the plaintiff to prove that Mondolet was in possession, but that he entered under color of title, and while so being in possession he claimed under color of title.

II. There was no error in refusing to allow the tax deed from Buckingham to Dumartheray to be read in evidence. The statute of 1857 has no application to the Buckingham

deed given in 1851. (Beekman v. Bingham, 1 Seld. 366; Stryker v. Kelley, 2 Denio, 323; Varick v. Tallman, 2 Barb. 113.) As no title passed by *the deed, no pre- [297] sumptions will be indulged in by reason of the deed "being ten years old." The complaint in the case of Mondolet v. Dufan was inadmissible for any purpose, and was clearly inadmissible as constituting an admission of title in the defendant Dumartheray.

III. There was no error in the Court refusing to allow the defendants to prove the payment of taxes by Dumartheray for a portion of the time in which he had been in possession. Dumartheray could acquire no title by so doing. In equity he was bound to pay them, and the payments are to be regarded as advancements for the benefit of the owner. (Kelley v. Abbott, 13 Cal. 619.)

IV. The Court properly refused to allow the defendants to prove the value of their improvements by way of "set-off," no improvements having been pleaded.

V. There was no error in the Court refusing to allow the tax deed from Patch, Collector, to be read in evidence. (Sharp v. Spier, 4 Hill, 76, 90, 91; Sharp v. Johnson, Id. 102, 103; 2 Comst. 170-172; 2 Barb. 344; 4 Denio, 237; Blackwell, 151-154, 330; Id. 450, sec. 16; 4 Hill, 76-91, et seq.; 8 Cal. 344; Tallman v. White, 2 Comst. 66; Lessee of Perkins v. Dibble, 10 Ohio, 433; Burchard v. Hubbard et al., 11 Id. 316.) VI. The recitals of the deed from Patch, Tax Collector, were insufficient for any purpose. (1 McLean, 321; Gould's Pl. 189, sec. 29, 3d ed.; 1 Comst. 79; 13 Cal. 609; Loher v. Latham, 15 Id. 418–420.)

VII. The tax deed from Patch, the Collector, was not prima facie evidence of the facts therein contained. (Ferris c. Coover, 10 Cal. 589, 632, 633; Kelsey v. Abbott, 13 Id. 609, 619; Lackman v. Clark, 14 Id. 131; 2 Comst. 66; 2 Denio, 323; 1 Seld. 366; 2 Barb. 113.)

VIII. There was no error in the Court refusing to allow the defendants to show by parol testimony the meaning of the figures 12x100. (Blackwell, 152-154 note.)

IX. The Court committed no error in submitting the question of abandonment to the jury, and in charging the jury that the Van Ness Ordinance had nothing to do with

this case. (10 Cal. 589; Act of Assembly of Penn., [298] passed Dec. 30th, 1786; 1 Watts, *46-49, 52; 1 Serg. & R. 120; 5 Serg. & Watts, 284-301; 4 Yeates, 534, Whitney v. Wright, 15 Wend. 171; 8 Cal. 144, affirmed in Id. 223; 9 Id. 5; 10 Id. 183, and cases there cited by respon dent's counsel; Laws of 1858, 54, sec. 9.)

X. Dumartheray could acquire no title under the tax deed from Patch to Bartlett, his grantor. (Blackwell, 460471; 10 Cal. 609; 22 Maine, 371; 12 Ill. 442.)

XI. The tax deed from Buckingham to Dumartheray being nine years old, is not to be regarded as an ancient deed, and nothing will be presumed in relation to it. (6 Wheat. 119; Blackwell, 48, 88, 89, 604; Allen v. Smith, 1 Leigh, 231; 4 Hill, 86; 4 Wheat. 77, et seq.; Thatcher v. Powell, 6 Id. 119; Blackwell, 619; Ex parte Newman, 9 Cal. 526.)

FIELD, C. J. delivered the opinion of the Court-COPE, J. and NORTON, J. concurring.

This is an action for the possession of certain real estate situated within the city of San Francisco. The plaintiff bases his right to recover upon title as evidenced by the possession in 1850 and 1851 of one Mondolet, through whom ho claims. The defendants rely upon two tax deeds, one executed by the Treasurer of the county of San Francisco in March, 1851, and the other executed by the Tax Collector of the City and County of San Francisco in June, 1858, and upon an alleged abandonment of the premises by Mondolet, and the operation of the Van Ness Ordinance. On the trial the plaintiff produced and gave in evidence, against the objection of the defendants, a conveyance of the premises from one Ramirez to Mondolet, executed in April, 1851, and then proved that Mondolet was in the possession of the premises in 1850 and occupied them until June, 1851; that during this period there was a two-story building thereon, which Mondolet used as a restaurant until it was destroyed by fire; and that the defendants were in the possession at the commencement of the action. The plaintiff also gave proof of the value of the use and occupation.

The tax deeds offered by the defendants, and the evidence in connection with them, were excluded upon the objection

of the plaintiff. Proof of the payment of taxes, as evidence of ownership by the *defendants and of [299] abandonment by Mondolet, was rejected; and the

alleged abandonment was submitted upon other proof as a question of fact to the jury. The Court refused to admit evidence of the value of the improvements as a set-off to the damages claimed, and held that the Van Ness Ordinance had no operation in favor of the defendants. The jury found for the plaintiff and assessed his damages at three hundred dollars, and judgment was entered upon the verdict.

Various errors are assigned for a reversal of the judgment. These arise upon the ruling of the Court below in admitting the conveyance from Ramirez to Mondolet; in excluding the tax deeds and evidence offered in connection with them; in rejecting proof of the payment of taxes and the value of the improvements; and upon the instructions to the jury on the question of abandonment and the operation of the Van Ness Ordinance; and upon the refusal of a new trial for the alleged insufficiency of the evidence to justify the verdict.

1. The conveyance from Ramirez to Mondolet was admissible, as showing the extent and boundaries of the premises of which Mondolet claimed possession. If Ramirez had no title, of course no title passed by his conveyance, and the defendants were not prejudiced by its introduction in evidence.

2. The tax deed of the County Treasurer, executed in March, 1851, was inadmissible without preliminary proof that all the requirements of the law authorizing its execution had been complied with. The statute which makes a tax deed prima facie evidence of the transfer of the title of the delinquent had not then been passed. That statute only applies to deeds executed upon a sale for taxes subsequently levied. Nor was any presumption to be indulged that the Treasurer, and the officers whose acts preceded his, had complied with the law. It was not a case in which presumptions could be indulged that the officers had done their duty. They acted under a naked statutory power, with a view to divest, upon certain contingencies, the title of the citizen, and in all such cases the purchaser relying upon the execution of the power must show that every preliminary step prescribed by the law

has been followed. (Williams v. Peyton's Lessee, 4 [300] Wheat. 78; Varick v. *Tallman, 3 Barb. 113.) Nor was any presumption to be indulged that all the preliminary steps had been followed from the length of time the deed had been executed and the grantee had been in the possession of the premises. There are many transactions of which it is impossible or extremely difficult, after the lapse of little time, to produce the proper evidence, and in favor of the regularity of which presumptions are in consequence made by the law. "Thus," says Greenleaf, "where an authority is given by law to executors, administrators, guardians, or other officers, to make sales of lands upon being duly licensed by the Courts, and they are required to advertise the sales in a particular manner, and to observe other formalities in their proceedings, the lapse of sufficient time (which in most cases is fixed at thirty years) raises a conclusive presumption that all the legal formalities of the sale were observed. The license to sell, as well as the official character of the party, being provable by record or judicial registration, must in general be so proved, and the deed is also to be proved in the usual manner; it is only the intermediate proceedings that are presumed. Probatis extremis præsumuntur media. The reason of this rule is found in the great probability that the necessary intermediate proceedings were all regularly had, resulting from the lapse of so long a period of time, and the acquiescence of the parties adversely interested, and in the great uncertainty of titles, as well as the other public mischiefs, which would result if strict proof were required of facts so transitory in their nature, and the evidence of which is so seldom preserved with care. Hence, it does not extend to records and public documents, which are supposed always to remain in the custody of the officers charged with their preservation, and which, therefore, must be proved, or their loss accounted for and supplied by secondary evidence." (Evidence, vol. 1, sec. 20.) If, in accordance with the reasons thus stated by Greenleaf, presumptions could be indulged in support of any of the preliminary acts essential to the exercise of the power of sale by the County Treasurer in the present case, they could only be indulged in favor of the acts between the assessment and the execution of the tax